Wrong Company Name Used to Form an Agreement Not a Minor Error
The argument that the company name listed in its bargaining notice was an error did not satisfy the FWC as a minor procedural or technical error. Allocated to Commissioner Chris Platt on 23 December 2022, he subsequently did not approve Healthe Care Surgical T/A Healthe Care’s enterprise agreement.
Despite its company name being ‘Healthe Care Surgical’, the bargaining notice that put forth the agreement for approval titled the agreement as ‘Health Care Surgical Pty Ltd Victorian Private Hospitals – Health Professionals Enterprise Agreement 2022’. The email referred to the company as ‘Healthe Care’. This was the second proposed agreement that has circled the employees, since April 2022, which initially titled the agreement as ‘Healthe Care (Victorian Hospitals) Health Professionals Enterprise Agreement 2022’. The company of this initial agreement was referred to as ‘Healthe Care Valley Pty Ltd’.
The change of the title of the proposed agreement was noted by the employer; however, no reasoning was provided as to why it was amended in the NERR that was distributed to the employees. Due to the lack of information and inconsistency of the name of the employer, Commissioner Platt stated that “…it is likely that genuine agreement as required by s 188(1) of the [Fair Work Act 2009 (Cth)] is absent.”
The employer argued that the difference between the two employer entities were minor; however, this was rejected by Commissioner Platt as the two entities were “completely separate”.
Commissioner Platt was not satisfied that the NERR sent to the employees met the requirements of the Fair Work Act 2009 (Cth) (“the Act”) either, and reasoned that the agreement would not have been genuine agreed upon by the employees within the meaning of section 188 of the Act.
- Proposed enterprise agreements should be made based on genuine agreement, and any changes should be disclosed with honesty and reasoning to allow genuine agreement between both parties.